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Supreme Court aligns with trial court in dog-attack case

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The Indiana Supreme Court has affirmed a trial court judge’s finding that the city of Evansville and its animal control division are not liable in a dog attack that seriously injured a boy.

Siding with Vanderburgh Circuit Judge Carl A. Heldt, the Supreme Court found that the Indiana Court of Appeals was in error when it reversed Judge Heldt’s decision.

In the case of Misty D. Davis v. Animal Control - City of Evansville, et al., No. 82S01-1102-CV-77, Misty Davis filed a complaint against the city and its animal control division in 2007, two years after a Rottweiler attacked her six-year-old son. Davis claimed that animal control “was well aware of this dog’s violent propensities based upon numerous prior attacks by this dog,” yet failed to protect her son from the animal.

The trial court found that the city defendants were entitled to law enforcement immunity under the Indiana Tort Claims Act, which provides immunity to governmental entities for any loss resulting from the failure to enforce a law. Davis appealed that decision, claiming law enforcement immunity did not apply because the complaint is not based on the defendants’ failure to enforce the law but rather on their failure to follow their own procedures for determining whether an animal is dangerous as set forth in the Evansville Animal Control Ordinance. The Court of Appeals majority agreed. Judge James Kirsch dissented.

In reversing the trial court’s decision, the COA relied on the Supreme Court decision in Mullin v. Municipal City of South Bend, 639 N.E.2d 278 (Ind. 1994), limited on other grounds, Benton v. City of Oakland City, 721 N.E.2d 224, 231 (Ind. 1999). In that case, the Supreme Court considered whether the failure of an emergency dispatcher to send an ambulance to a house fire despite a department policy stating that medics would be dispatched to all fire calls where someone was thought to be inside fell within the parameters of law enforcement immunity.

In Mullin, the Supreme Court concluded that the scope of  enforcement is limited to activities in which a governmental entity or its employees compel or attempt to compel the obedience of another to laws, rules or regulations, or sanction or attempt to sanction a violation thereof. Because the dispatcher in Mullin was not doing any of those things, the claim was not barred by the law enforcement provision.

“This was not the correct way to apply Mullin,” the Supreme Court stated of the COA reversal in Davis. “Mullin did not hold that there was no law enforcement immunity because city employees did not follow procedures; it held that there was no law enforcement immunity because in responding to a fire emergency, the city was not engaged in law enforcement.”

The Supreme Court stated that a dog with the same name had attacked someone before Davis’ son was attacked, but the owner’s address and name were different in both cases; therefore, it’s not certain whether the dog previously picked up and held temporarily by the animal control division is the same one that attacked Davis’ son.

Holding that the plaintiff's claim does constitute an allegation that the city defendants failed to enforce the law, the Supreme Court ruled Davis is not entitled to collect damages from the defendants.

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  1. Im very happy for you, getting ready to go down that dirt road myself, and im praying for the same outcome, because it IS sometimes in the childs best interest to have visitation with grandparents. Thanks for sharing, needed to hear some positive posts for once.

  2. Been there 4 months with 1 paycheck what can i do

  3. our hoa has not communicated any thing that takes place in their "executive meetings" not executive session. They make decisions in these meetings, do not have an agenda, do not notify association memebers and do not keep general meetings minutes. They do not communicate info of any kind to the member, except annual meeting, nobody attends or votes because they think the board is self serving. They keep a deposit fee from club house rental for inspection after someone uses it, there is no inspection I know becausee I rented it, they did not disclose to members that board memebers would be keeping this money, I know it is only 10 dollars but still it is not their money, they hire from within the board for paid positions, no advertising and no request for bids from anyone else, I atteended last annual meeting, went into executive session to elect officers in that session the president brought up the motion to give the secretary a raise of course they all agreed they hired her in, then the minutes stated that a diffeerent board member motioned to give this raise. This board is very clickish and has done things anyway they pleased for over 5 years, what recourse to members have to make changes in the boards conduct

  4. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  5. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

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